Legal Issues in Developmental Education: Immigrant Students and the DREAM Act

Research & Teaching in Developmental Education, Fall 2005 by Miksch, Karen L

Few students who qualify for the lower tuition rates are actually taking advantage of them. In some cases, immigrant students lack the academic preparation needed for college. In others, even the in-state tuition rate is too high for such students, and financial-aid programs are still largely closed off to them. A federal law, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"), precludes undocumented immigrants from qualifying for federal financial aid or student loans. Of the nine states with in-state tuition laws on their books, only two, Texas and Oklahoma, offer state financial aid to undocumented immigrants. A third, Utah, allows the students to qualify for only one state aid program (Fischer, 2004). There are some private scholarships available, regardless of immigration status. However, lack of financial aid and federal student loans continues to be a barrier for immigrant students.

The largest barrier to immigrant students going to college may be lack of knowledge that they are eligible for in-state tuition. For example, after Kansas passed its law, only 30 undocumented students attended colleges as in-state residents, whereas over 350 were eligible and expected to enroll. In other states, international students are getting in-state tuition, but not many long-term undocumented residents. Texas seems to be the exception. Approximately 6,500 undocumented students have attended colleges since the law was passed in Texas (Fischer, 2004).

States that have not passed laws regarding immigrants and eligibility for instate tuition leave it up to individual colleges and universities to determine the policy. Several colleges and universities in Virginia have decided to not even admit undocumented students as out-of-state residents. Legal challenges to Virginia Colleges' decision not to admit undocumented students will be discussed next, as will a recent lawsuit challenging the Kansas law that provides in-state tuition to undocumented students.

Legal Challenges to Access to Higher Education for Undocumented Students

State and federal statutes and case law make it clear that undocumented students have a right to enroll in public elementary and secondary schools. In PIy 1er v. Doe (1982), the U.S. Supreme Court ruled that all children, regardless of immigration status, have a right to go to public school. To discriminate against undocumented children, according to the Court, would unconstitutionally punish children for the acts of their parents. The Plyler case only dealt with K-12 schools, and the Court did not address whether the ruling also applied to institutions of higher education. Thus, in the area of higher education, it is not as clear what rules govern colleges and universities (American Association of State Colleges and Universities (AASCU), 2004).

A recent lawsuit filed by the Mexican American Legal Defense and Educational Fund (MALDEF) attempted to clarify the right of undocumented students to attend institutions of higher education. MALDEF sued seven Virginia state colleges and universities on behalf of undocumented students seeking entrance to the schools (Equal Access Education v. Merten, 2004). The MALDEF complaint alleged that the Virginia institutions denied admission to students based on actual or perceived unlawful immigration status. The plaintiffs alleged that these admission policies, coupled with the recommendations of the Virginia Attorney General to report students based on perceived undocumented immigration status, were an unconstitutional barrier to access to higher education. According to the district court's ruling in Equal Access Education v. Merten, institutions may, consistent with the U.S. Constitution, deny admission or enrollment to aliens unlawfully in this country. The court left this decision up to the individual colleges and universities. The court did find that at least one of the institutions sued, Virginia Tech, did not consider immigration status at all when reviewing applications for admission. Virginia Tech does not deny admission to undocumented students, however, several of the state schools in Virginia, including the University of Virginia, continue to do so after the lawsuit.